SEXUAL ORIENTATION AND THE PROTECTIONS AFFORDED BY TITLE VII: RIPE FOR SUPREME COURT REVIEW

In early April, the United States Court of Appeals for the Seventh
Circuit became the first Federal Circuit Court to hold that discrimination on
the basis of sexual orientation is a form of sex discrimination and, therefore,
prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).
The Seventh Circuit’s decision sides with the position taken by the EEOC, which
has been pushing to extend Title VII’s protections to include sexual
orientation.

The Seventh Circuit’s holding is in contrast to its prior
jurisprudence, as well as the position taken by many other federal appellate
courts. As such, the question of whether Title VII extends to cover
sexual orientation discrimination appears ripe for Supreme Court review. In the
Eleventh Circuit, a panel of judges recently refused to recognize sexual
orientation claims under Title VII, putting the Eleventh Circuit at odds with
the new Seventh Circuit jurisprudence.

The Seventh Circuit’s opinion is not without nuance, however.
Instead of making the jump that sexual orientation discrimination is prohibited
by Title VII, despite the lack of inclusion of “sexual orientation” language in
the statute, the Seventh Circuit found that sexual orientation
discrimination falls under the umbrella of sex discrimination. In
reaching its decision, the Court touched on the progressive jurisprudence
regarding sexual orientation coming from the Supreme Court the last one to two
decades.

Given the potential shift in national jurisprudence on this issue,
employers should consider including a prohibition on sexual orientation
discrimination within their handbooks and incorporating such a policy into its
anti-harassment and anti-discrimination training.